Tipp FM Legal Slot – 6th January 2015 – New Year’s Resolutions – Family Law
On Tipp FM, John M. Lynch spoke to Seamus Martin on ‘Tipp Today’ about reviewing your family circumstances in the new year.
Listen to John’s discussion:
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Recently, there have been changes to the in camera rule, which mean that the media will be allowed to report on Family Law proceedings. Tell us about these new developments.
- New Year’s Resolution Advice: Be Aware the Media Can Now Report on Your Family Law Case
Up until now, Family Law proceedings have always been held in camera, which meant that they were dealt with in private and the public, media or law reporters did not have access. Since the 13th January 2014, media access is now permitted into court hearings on family law issues and child care. This includes divorce, separation, domestic violence, maintenance, custody, or cases where the State is taking children into care. The media can now report on what is happening in court.
What safeguards are in place to protect the family’s privacy?
- New Year’s Resolution Advice: Don’t Worry – Your Privacy Remains Intact!
There are very important safeguards in place. Journalists cannot report on anything that would identify the family, witnesses or the child(ren) in question.
Will this lead to greater transparency in Family Law cases as everyone involved will be aware of how cases are dealt with?
- New Year’s Resolution Advice: Embrace the Change – It will Benefit Your Situation
The changes to the in camera rule allow greater transparency in the way that Family Law cases are dealt with. Up until now, there has been no transparency because there has been no report from Family Law cases and there has been a veil of secrecy around Family Law proceedings.
This new change to the in camera rule means that decisions of the court can be open to scrutiny; there is a safeguard; there will hopefully be more consistent judicial decisions nationally and legal professionals such as solicitors, the judiciary and the public will know how the courts are dealing with Family Law issues.
Who will benefit from the changes to the in camera rule?
Everyone involved in Family Law cases will benefit from the new change. It will be to solicitors’ benefit because we will know how judges are dealing with cases; it will be to clients’ benefit because there will be more consistency across the country in the way cases are being dealt with. Consistency and transparency will hopefully be the outcome from these new changes as a body of case history can develop.
Is there any precedent in Family Law cases already and will there now be more?
There is already precedent in Family Law cases insofar as there are High Court decisions. In any of those cases the family are not identified; people are referred to by their initials or initials that the court has given them. With the new changes, cases in local courts can now be reported on and solicitors and the public will know what way particular judges are dealing with cases.
The change to the in camera rule was brought in in the UK in 2009 and there was a flurry of publicity around those changes, many arguing that the privacy of family law hearings would be lost, but those concerns never materialised.
Are there any situations where journalists would be restricted from reporting on Family Law proceedings?
- New Year’s Resolution Advice: Know That Your Family Law Hearing May Still be Dealt with In Private
The court will retain the power to exclude representatives of the press or to restrict reporting in certain circumstances. The court can do so on an application by one of the legal teams involved to the effect that due to particular circumstances the case should not be reported on or the court can decide on that itself. In reaching a decision on whether the case should be reported on or not, the court will have to balance the promotion of public confidence in Family Law cases with the best interests of the child, and what is in everybody’s best interest.
The Minister for Justice, Alan Shatter, intends on holding a Referendum this year to establish a new Family Court system. What changes are proposed?
At present, our courts system does not have a dedicated family law division. The current family courts system is “fragmented” with the three courts — District, Circuit, and High Court — each dealing with separate family issues, ranging from maintenance applications and custody issues to child abductions.
Currently, a Judge can, without any further training or prior experience, deal with a criminal case, a road traffic accident case or a family law case. This can be a serious problem in Family Law cases, particularly as children are involved, which require a very high degree of understanding, empathy, sensitivity and delicacy.
Under the new proposals Judges with a specialisation in family law will preside over all proceedings. This is a very important and welcome development. It is important that the judiciary have special skills, so that when individuals go to family court, they know there’s going to be a degree of consistency.
Minister Shatter hopes that the new system “should be more user friendly and should make things less costly”. It is hoped that the new regime will be a less intimidating and a more welcoming environment for families in personal difficulties.
During the post-holiday period; Christmas and summer, we see an increase in separations and family law matters.
Remind us again, what is ADR (Alternative Dispute Resolution) and why is it suited to Family Law disputes?
In sensitive family law matters ADR (Alternative Dispute Resolution) should be exhausted before going down the court route. ADR does not add to the conflict in question, where a Court situation can. It is a less stressful method for the individuals who are already involved in stressful situation.
ADR, instead of Court, is more confidential and versatile, faster and less costly and better for maintaining relationships if people reach a mutually acceptable decision.
There are many forms of ADR including structured negotiation, collaborative law, mediation and arbitration. Mediation is usually the chosen method in family law disputes.
Mediation is a swift, cost efficient method of dispute resolution. It is based on the principle that most people can resolve their own disagreements if given the right encouragement. Mediation is a non-adversarial method of dispute resolution, which means that the people involved own the resolution. It is a negotiation between the people involved in the dispute instead of negotiation between their solicitors and barristers. Mediation facilitates the wishes of all parties involved in order to produce an appropriate result.
Why and how can two people who are at loggerheads come to an agreement?
The people in dispute don’t necessarily have to be in the same room. There can be two separate rooms and if they are working well they can be brought together to deal with their dispute in a civil way. The Mediator asks the parties about points at issue. The function of mediator is to facilitate an agreement between the parties, not to decide the outcome for them.
What happens if one person/party is completely unreasonable?
If mediation doesn’t work, the Mediator gives a recommendation. If mediation does not resolve the dispute the Court will attempt to act in the best interests of the child.
Will the child ever be asked what s/he wants?
There’s a big movement towards the child’s voice being heard. Generally, if the child is mature and at certain age, the Court will take their wishes into account.
Why is the area of Guardianship so important, particularly for unmarried fathers?
A lot of fathers are unaware that if they are not married to the mother of their child/children, they have no guardianship rights per se. Fathers must proactively apply for guardianship. This poses no problems if the parties are consenting; a declaration is simply signed by mother to state that the father is guardian. This is the most efficient way of doing it without going to Court.
Guardianship does not mean custody or day-to-day care of the child. Effectively, if the mother dies, it means there is another responsible adult to take care of the child.
However, if the mother does not think the father is a good parent the issue of guardianship can be resolved in Court. The Court will grant guardianship where the father is, in fact, involved in the child’s life and will continue to be so.
What happens If a parent who pays maintenance is now unemployed?
A situation I often see arising is where a parent becomes unemployed and maintenance becomes an issue. While the Courts are very reluctant to wipe out maintenance they will reduce it where the parent’s financial situation changes. This can cause further difficulty between the parents and I always advise that access should not depend on maintenance. The courts take a very dim view of using access as a negotiating term for either paying or receiving maintenance.
Example:
A solicitor receives a phone call from a mother stating the father of her child has arrived to collect the child but he has not paid any maintenance. Should the father be allowed to spend time with his child? The Courts are of the view that it is in the best interests of the child to spend time with both parents and that children shouldn’t be used as a negotiation tool.
Is maintenance tied to guardianship, custody and access?
This is an area of concern all year round. The courts take the view that, with it comes to custody, access and guardianship the best interests of the child is the most important consideration. The courts now invariably take the view that it is in the best interests of the child to spend time with both parents. It is also worthwhile stating that it is in the parties’ interests to reach agreement between themselves rather than having a court imposed arrangement.
If the parties cannot reach agreement between themselves or by mediation they may have no choice but to go to court. When going to court It is important to realise that as a court of law and fact – the court can only make a decision when they are in possession of all the facts. You should therefore make sure that you can prove any allegation or support and the fact that you want the judge to take into account.
Mixing money with the child’s welfare is not advisable.
The Courts consider two issues in this regard:
- Is it more beneficial for a child to have a relationship with a father?
- Is it, therefore, right to deny the child that right simply because a parent is failing to deal with maintenance?
According to the Courts – you don’t mix the two.
More generally, what kind of agreements can be put in place in Family Law matters?
There are many forms of different agreements which can be made between the parties when you are dealing with family circumstances – co-habitation agreements, separation agreements, prenuptial agreements, consent divorce and judicial separation agreements and parenting plan.
Like in all areas of law, it is possible to avoid confrontation and sit down and work out an agreement between the parties.
Cohabiting couples can have cohabitation agreements; married couples who are separating can have separation agreements; people who are getting married can have prenuptial agreements; and people who are separating can also have court orders by agreement; and separating parents can incorporate a parenting plan into their separation agreement.
When should a married couple consider a Judicial Separation or a Divorce Decree?
Where marriages have broken down and the parties have agreed that there is no possibility of reconciliation, consideration should be given to applying for judicial separation orders and or a divorce decree.
Orders are essential in areas such as pension rights and also offer the parties a certain amount of finality.
There have been a number of recent Supreme Court judgements which have set down ground rules for inherited property and division of assets on separation, which now need to be taken into account in the context of any current divorce or judicial separation applications.
